Clancy (Migration)

Clancy (Migration) [2022] AATA 926 (21 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Laura Ann Clancy
CASE NUMBER:  2108770
HOME AFFAIRS REFERENCE:               BCC2020/2272848
MEMBER:L. Symons
DATE:21 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 21 January 2022 at 1:32pm

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – applicant had provided incorrect answers in visa application – there was non-compliance in the way described in the notice –false information –applicant did not undertake specified work in regional Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Ireland and was born on 25 November 1994. She was initially granted a Subclass 417 (Working Holiday) visa on 29 August 2019. She arrived in Australia on 12 September 2019 and her visa was valid until 12 September 2020. On 12 August 2020, she made an application to the Department of Immigration (the Department) for a 12 month extension of her Subclass 417 (Working Holiday) visa. One of the requirements for a 12 month extension of that visa is that she must have completed 3 months of specified work in regional Australia. In her visa application, she claimed that she had completed 3 months of specified work in regional Australia. On 12 August 2020, she was granted a 12 month extension of her Subclass 417 (Working Holiday) (Extension) visa which was valid until 12 September 2021.
On 1 July 2021, the delegate cancelled the Subclass 417 (Working Holiday) (Extension) visa under s.109(1) of the Act on the basis that on 12 August 2020 the applicant provided incorrect answers in her application for a Subclass 417 (Working Holiday) (Extension) visa. On 6 July 2021, the applicant applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 13 January 2021 to give evidence and present arguments.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:
On 4 May 2021, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOITCC) of her Subclass 417 (Working Holiday) (Extension) visa as she considered that there had been non-compliance with s.101(b) of the Act. The NOITCC stated that s.101(b) of the Act provided that a non-citizen must fill in or complete his or her application in such a way that no incorrect answers are given or provided.
The NOITCC stated that the applicant lodged an application for a Subclass 417 (Working Holiday) (Extension) visa on 12 August 2020 via the Department’s online facility. The NOITCC stated that in response to the question “Has the applicant undertaken 3 months of specified work as the holder of a first Working Holiday visa subclass 417?” she answered “Yes”.
The NOITCC stated that under the heading “Details of specified work undertaken” the applicant provided the following answers in part:
Legal registered name:  Pearl Recruitment Group
Trading name:  Pearl Recruitment Group (WA) Pty Ltd
ABN  75145084046
Employer business address:
Address:  Level 1 Melville Parade
Suburb/town:  South Perth
State/Territory:  Western Australia
Postcode:  6151
Work address:
Business name at this location:         Gumala Aboriginal Corporation
Address:  Yandicoogina
Suburb/town:  Newman
State/Territory:  Western Australia
Postcode:  6753
Work conditions:
Employment type:  Direct employment
Industry type:  Construction
Industry type sub-group:  Construction
Description of duties:   Land development and site preparation services
Date from:  02 March 2020
Date to:  05 July 2020
Total days worked:  90
The NOITCC stated that under the heading “Working Holiday Declaration”, in response to the question “Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first Working Holiday visa”, the applicant answered “Yes.”
The NOITCC stated that a Departmental officer subsequently initiated employment verification checks with Pearl Recruitment Group (WA) Pty Ltd to verify the applicant’s employment. On 3 September 2020, Pearl Recruitment Group (WA) Pty Ltd contacted the Department and advised that she never worked at their business.
The NOITCC stated that the delegate considered that there was possible non-compliance with s.101(b) of the Act which required the applicant to fill in her application form in such a way that no incorrect answers are given or provided. It stated that s.100 of the Act provides that an answer to a question is incorrect even if the person who gave the answer, or caused the answer to be given, did not know it was incorrect. It stated that, as such, her subclass 417 (Working Holiday) (Extension) visa may be liable for cancellation under s.109 of the Act.
The NOITCC invited the applicant to comment on the possible non-compliance and give a response as to why her visa should not be cancelled in writing within 14 calendar days after she was taken to have received the letter. She was advised of the process for deciding whether her visa should be cancelled and that her response would be taken into account. She was advised that her obligations under ss.104 and 105 of the Act continue. She was advised of the provisions of ss.108, 109, 111 and 112 of the Act. She was advised of the provisions of r.2.41 of the Regulations and what matters the delegate would consider. She was advised that she was required to keep the Department informed of her residential address and any change in her residential address until the time a decision is made about whether to cancel her visa.
The applicant did not comment on or respond to the NOITCC. Her Subclass 417 (Working Holiday) (Extension) visa was cancelled on 1 July 2021.
During the hearing, the Tribunal went through the NOITCC with the applicant and she agreed with the information in the NOITCC. She accepted that she had caused to be provided incorrect answers in her application to the Department for a Subclass 417 (Working Holiday) (Extension) visa. When asked why she did not respond to the NOITCC, she stated that she contacted a lawyer at the time, was advised not to respond to the NOITCC and to appeal (to the Tribunal). She followed that advice.
The applicant gave evidence that she agreed that, by giving the Department incorrect answers in her application for a Subclass 417 (Working Holiday) (Extension) visa, she had breached s.101(b) of the Act.
In view of the above, the Tribunal finds that the applicant gave or caused to be given incorrect answers in her application for a Subclass 417 (Working Holiday) (Extension) visa. Specifically, the Tribunal considers that her answers to the following questions and the declaration in the visa application lodged on 12 August 2020 were incorrect:
Legal registered name:  Pearl Recruitment Group
Trading name:  Pearl Recruitment Group (WA) Pty Ltd
ABN  75145084046
Employer business address:
Address:  Level 1 Melville Parade
Suburb/town:  South Perth
State/Territory:  Western Australia
Postcode:  6151
Work address:
Business name at this location:         Gumala Aboriginal Corporation
Address:  Yandicoogina
Suburb/town:  Newman
State/Territory:  Western Australia
Postcode:  6753
Work conditions:
Employment type:  Direct employment
Industry type:  Construction
Industry type sub-group:  Construction
Description of duties:  Land development and site preparation services
Date from:  02 March 2020
Date to:  05 July 2020
Total days worked:  90
Under the heading Working Holiday Declaration, in response to the question Are applying for their second Working Holiday visa (subclass 417) and have completed 3 months of specified work as the holder of a first Working Holiday visa, where the applicant answered Yes.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
The correct information is that the applicant never worked in a specified job in regional Australia for at least 3 months whilst the holder of a Subclass 417 (Working Holiday) visa. She was never employed by Pearl Recruitment Group (WA) Pty Ltd.
The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s visa.
The content of the genuine document
Not applicable.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant was granted a Subclass 417 (Working Holiday) (Extension) visa on 12 August 2020 on the basis that she satisfied the criteria for the visa. One of the criterion is cl.417.211(5) which requires the Minister to be satisfied that, if the applicant held only one Subclass 417 visa in Australia, she has carried out a period or periods of specified work in regional Australia as the holder of the visa and the total period of work carried out is at least 3 months and she has been remunerated for the work in accordance with relevant Australian legislation and Awards.
The applicant relied on incorrect answers in her visa application that she worked at Pearl Recruitment Group (WA) Pty Ltd, in a specified job, in regional Australia, and undertook this work for at least 3 months whilst the holder of a Subclass 417 (Working Holiday) visa to satisfy the criterion in cl.417.211(5). The delegate relied partly on these incorrect answers to grant her the Subclass 417 (Working Holiday) (Extension) visa. The Tribunal is of the view that the decision to grant her the visa was partly based on these incorrect answers.
The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s visa.
The circumstances in which the non-compliance occurred
The circumstances in which the non-compliance occurred were that the applicant applied for a Subclass 417 (Working Holiday) (Extension) visa on 12 August 2020 and provided incorrect answers in her visa application.
The applicant did not respond to the NOITCC to the Department.
During the hearing, the applicant gave evidence that she worked in health care in Ireland. After she came to Australia on 12 September 2019, she worked in the aged care sector in two nursing homes for a few months. She then went to Orange to work on a farm in June 2020. After 10 days, the farmer terminated her employment as those who were the last to be employed were the first he let go. Farm work was hard to come by in NSW. There would have been farm work in Queensland but she would have had to quarantine there first and there would not have been enough time (before her first Subclass 417 (Working Holiday) visa expired).
The applicant stated that she left Orange and returned to work in the private health care sector. When her first Subclass 417 (Working Holiday) visa was about to expire she panicked. The situation in relation to the Covid pandemic in Ireland was bad and she did not want to return to Ireland. She also loved Australia and wanted to live here. She spoke to someone at the time, who she thinks was a migration agent, who told her about Covid visas. When asked why she did not apply for a Covid visa, she responded that it was a new visa and no one knew for how long they would be valid. She thought that if it was only valid for 3 months she would have had to return to Ireland after 3 months so she did not apply for a Covid visa. When asked whether she contacted the Department to explain her situation and ask for help, she responded no.
The applicant stated that she was aware that it was a requirement for a Subclass 417 (Working Holiday) (Extension) visa that she had to have undertaken specified work in regional Australia for 3 months. She left things to the last minute and then panicked. She heard from people in the Irish and English community that there was a man called Golden Fish who was granting people visas and everyone was going to him at the time. She did not know his name or anything about him. She contacted him straight away and did not look into him. She paid him $1,000.00 and he prepared and lodged her visa application. She knew it was wrong. At the time she thought it was a good idea but now knows that it was not. She did not consider the consequences.
The applicant stated that after the Subclass 417 (Working Holiday) (Extension) visa was grated to her she moved to Perth and worked in the mines for 9 months. Her Subclass 417 (Working Holiday) (Extension) visa was then cancelled.
Having considered this evidence, the Tribunal accepts that the applicant did attempt to undertake farm work in Orange and was laid off by the farmer shortly after she commenced the work. The Tribunal notes however that, as she had not prioritised the farm work, she had left it until late during the period of validity of her first visa and did not leave herself with sufficient time to organise and undertake 3 months specified work in regional Australia after her farming job in Orange was terminated. The Tribunal also notes that she was aware of the Covid visa and had the option to apply for a visa to remain in Australia lawfully albeit with uncertainty over the length of that visa but chose to apply for a Subclass 417 (Working Holiday) (Extension) visa knowing that she was not entitled to this visa. Her evidence tends to indicate that she may have been influenced by her peers, been ill advised and made a series of bad decisions without proper consideration of the consequences of those decisions. Ultimately though, she is responsible for her decisions and the consequences of those decisions.
The Tribunal gives this consideration some weight in favour of affirming the decision to cancel the applicant’s visa.
The present circumstances of the visa holder
The applicant is a citizen of Ireland and has been in Australia since 12 September 2019. Her parents and brother live in Ireland. She has four first cousins who live in Australia. They are Australian citizens. She is currently living with two friends. She is on a Bridging E visa with a no work condition. When she worked in the mines, she made good money and has been living off her savings since July 2021. It is getting very difficult for her now.
The applicant stated that when she first came to Australia, she thought she would stay for a year or two and then (return to Ireland). The longer she has been here the harder it has got for her to leave. She loves it here and would like to get permanent residence in Australia. When she was granted the Subclass 417 (Working Holiday) (Extension) visa she hoped to continue working in Australia and eventually get sponsored. She does not know what will happen now.
Having considered this evidence, the Tribunal accepts that if the applicant’s visa is cancelled it would adversely impact on her plans to continue to work in Australia and get sponsored for a visa and her long term plans to apply for permanent residence in Australia.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no evidence before the Tribunal to indicate that the applicant attempted to contact the Department to correct the incorrect answers provided in her application for a Subclass 417 (Working Holiday) (Extension) visa. She did not respond to the NOITCC.
The Tribunal gives this consideration some weight in favour of affirming the decision to cancel the applicant’s visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal to indicate that there are other instances of non-compliance by the applicant.
During the hearing, the applicant gave evidence that after her Subclass 417 (Working Holiday) (Extension) visa was cancelled and she was granted a Bridging E visa subject to a no work condition, she stopped working. She has not worked since July 2021 and has been living off her savings. The Tribunal accepts this evidence.

The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
The time that has elapsed since the non-compliance
The non-compliance occurred on 12 August 2020 when the applicant provided, or caused to be provided, incorrect answers in her application for a Subclass 417 (Working Holiday) (Extension) visa. It has been over 1 year and 5 months since then. The Tribunal does not consider this to be a substantial period of time.
The Tribunal gives this consideration some weight in favour of affirming the decision to cancel the applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal to indicate that the applicant has breached any laws since the non-compliance.
During the hearing, the applicant gave evidence that, whilst living in Australia, she has not breached any other laws, including traffic laws, has not been in trouble with the Police and has not been charged with any criminal offence. The Tribunal accepts this evidence.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
Any contribution made by the visa holder to the community
During the hearing, the Tribunal asked the applicant whether she had made any contribution to the Australian community. She responded that she has not been working since her visa was cancelled and has not undertaken any volunteer work.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
Whether there would be consequential cancellations under s.140 of the Act
There is no evidence before the Tribunal to indicate that there would be consequential cancellations under s.140 of the Act if the applicant’s visa is cancelled. During the hearing, the applicant confirmed no one else’s visa would be cancelled if her visa is cancelled.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
Are there children whose interests would be affected by the cancellation of the visa
There is no evidence before the Tribunal to indicate that the applicant has any children whose interest would be affected by the cancellation of her visa.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
Would the cancellation lead to the applicant’s removal in breach of Australia's non-refoulement or family unity obligations
There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s visa would lead to her removal in breach of Australia’s non-refoulement or family unity obligations.
During the hearing, the applicant gave evidence that there is no particular reason why she cannot return to Ireland other than the situation in relation to the Covid pandemic. Life there is horrible at the moment and it is not a place for young people. Everything closes at 8.00pm. Life in Australia is pretty normal and she cannot imagine going back to Ireland any time soon.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s visa.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening
If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, she will become an unlawful non-citizen and may be liable to be detained under s.189 of the Act and removed under s.198 of the Act unless she departs Australia voluntarily. It is unlikely that she would be granted a Bridging visa on departure grounds and, even though she will not have a valid visa, she will have sufficient time to depart Australia voluntarily. As there is no reason why she cannot return to Ireland, there is no prospect of indefinite detention if she does not depart Australia voluntarily.
If the applicant’s Subclass 417 (Working Holiday) (Extension) visa is cancelled, she will be subject to s.48 of the Act which means she will have limited options when applying for further visas while in Australia and Public Interest Criteria may prevent her from being granted particular temporary visas for a period of 3 years from the date of cancellation. This will affect her ability to make a valid application for certain visas or to be sponsored for a Business visa for 3 years. These are the intended legal consequences in the legislation when a visa is cancelled and it reflects the seriousness of a breach of s.101(b) of the Act and consequent cancellation of a visa.
The Tribunal gives this consideration no weight against affirming the decision to cancel the applicant’s visa.
Any other relevant matter
During the hearing, the applicant gave evidence that she is suffering from anxiety and to return to Ireland and have to deal with the situation there would be ten times worse. She has a good life in Australia. She has family and friends. She works in health care. She wishes that she could turn back time. What she did was wrong and she is very sorry.
The Tribunal accepts that the applicant has accepted responsibility for her actions, is sorry for what she did and has expressed her contrition.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s visa.
CONCLUSION
Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Subclass 417 (Working Holiday) (Extension) visa outweigh the grounds for not cancelling her visa. Therefore, the Tribunal concludes that the Subclass 417 (Working Holiday) (Extension) visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.
L. Symons
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 926

21 January 2022

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Immigration

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